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Judgments - Turkington and Others (Practising As Mccartan Turkington Breen) v. Times Newspapers Limited (Northern Ireland)


Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Cooke of Thorndon Lord Millett











My Lords,

    On 24 January 1995 The Times published an article relating to the subject of a press conference which had been held the day before. The press conference had been organised by an informal Committee formed to secure the release and vindication of Private Lee Clegg, who had been convicted of serious criminal offences allegedly committed while he had been serving as a private soldier in the Parachute Regiment in Northern Ireland. He had been sentenced to life imprisonment and to a concurrent term of 4 years'. The Times article made critical reference to the plaintiffs in these proceedings, a firm of solicitors practising in Belfast ("the solicitors") who had represented Mr. Clegg at his trial and on his unsuccessful appeal to the Court of Appeal in Northern Ireland. In these proceedings the solicitors sued Times Newspapers Limited as publishers of The Times ("the newspaper"), claiming damages for libel. They succeeded before Girvan J. and a jury, and again on the newspaper's appeal to the Court of Appeal. Although other issues were canvassed before the trial judge and the Court of Appeal, the newspaper's appeal to this House raises only the question whether the judge and the Court of Appeal were right to rule, as they did, that the newspaper was not in all the circumstances entitled to rely on the defence of qualified privilege afforded by section 7 of and paragraph 9 of the Schedule to the Defamation Act 1955 of Northern Ireland. This question has been sub-divided into two issues for decision, which are set out below.

The Facts

    The lucid and comprehensive judgment of the Court of Appeal delivered by Carswell LCJ ([1998] N.I. 358) gives a full account of the facts giving rise to this appeal as understood by that court. I give only the barest summary needed to understand the issue.

    The membership of the Clegg Committee included some former senior officers in the Parachute Regiment; Mr. McKay, Mr. Clegg's English solicitor who had by this time taken over his representation; a clerical supporter of Mr. Clegg; and Lord St. Oswald. They decided to hold a press conference to drum up support for Mr. Clegg at Lord St. Oswald's home in Yorkshire on 23 January 1995. Representatives of the press were invited to attend. One of those who did attend was Mr. Wilkinson, the northern correspondent of The Times, who was despatched by his newsdesk to cover the conference and in due course wrote (with others) the article complained of. Among others who attended was a Mr. Barker, a former member of the Parachute Regiment, who was not a journalist: he read of the forthcoming press conference in his local paper, spoke on the telephone to Lord St. Oswald, and attended at the press conference without any objection being taken to his presence. It is not entirely clear on the evidence how many people attended the press conference. It would seem that there were about thirty journalists and a number of others, but the numbers may have been greater. No check was made on the identity or credentials of those attending the meeting, and no one was turned away. A press release was made available to all those attending but was not read aloud during the proceedings, although brief reference was made to it orally by one of the speakers. Copies of a petition in support of Mr. Clegg were given out for signature by those who wished to sign. When the press conference began, statements were made by members of the Committee, including Mr. McKay, some of whose observations were critical of the solicitors, although he modified these to some extent on being pressed. Those attending were invited to ask questions or make statements. A number of questions were asked, including several by Mr. Barker, and observations were made. After the questions were over, a number of journalists, including Mr. Wilkinson, approached the top table to speak to members of the Committee individually and Mr. Wilkinson took the opportunity to put some further questions to Mr. McKay concerning criticisms of the solicitors made in the press release.

The Legislation

    A measure of statutory protection has been granted to newspaper reports of proceedings of public meetings for over a century. Section 2 of the Newspaper Libel and Registration Act 1881 provided:

    "Any report published in any newspaper of the proceedings of a public meeting shall be privileged, if such meeting was lawfully convened for a lawful purpose and open to the public, and if such report was fair and accurate, and published without malice, and if the publication of the matter complained of was for the public benefit; provided always, that the protection intended to be afforded by this section shall not be available as a defence in any proceeding, if the plaintiff or prosecutor can show that the defendant has refused to insert in the newspaper in which the report containing the matter complained of appeared a reasonable letter or statement of explanation or contradiction by or on behalf of such plaintiff or prosecutor."

This provision was replaced by a more elaborate provision in section 4 of the Law of Libel Amendment Act 1888, which so far as relevant provided:

    "A fair and accurate report published in any newspaper of the proceedings of a public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, . . . shall be privileged, unless it shall be proved that such report or publication was published or made maliciously: Provided that nothing in this section shall authorise the publication of any blasphemous or indecent matter: Provided also, that the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it shall be proved that the defendant has been requested to insert in the newspaper in which the report or other publication complained of appeared a reasonable letter or statement by way of contradiction or explanation of such report or other publication, and has refused or neglected to insert the same: Provided further, that nothing in this section contained shall be deemed or construed to limit or abridge any privilege now by law existing, or to protect the publication of any matter not of public concern and the publication of which is not for the public benefit.

    "For the purposes of this section 'public meeting' shall mean any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted."

To give effect to the Report of the Committee on the Law of Defamation (Cmd. 7536) chaired by Lord Porter, the Defamation Act of 1952 was enacted: this Act did not (save for one section) extend to Northern Ireland, but was followed in Northern Ireland by the Act of 1955, which governs this case and which was in terms indistinguishable for present purposes from the English Act. It repealed section 4 of the 1888 Act. Section 7 of the 1955 Act, corresponding to section 7 of the 1952 Act, provided:

    "(1) Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule shall be privileged unless the publication is proved to be made with malice.

    (2) In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances.

    (3) Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit.

    (4) Nothing in this section shall be construed as limiting or abridging any privilege subsisting (otherwise than by virtue of section four of the Law of Libel Amendment Act, 1888) immediately before the commencement of this Act . . ."

The Schedule referred to was in two parts. Part I listed newspaper statements privileged without explanation or contradiction. These were reports of proceedings in certain legislatures, international organisations and courts, Commonwealth courts, courts martial and official public inquiries, and certain official documents. Part II listed statements privileged subject to explanation or contradiction. Paragraph 9, the provision at the heart of this appeal, extended such privilege (subject to section 7) to:

    "A fair and accurate report of the proceedings at any public meeting held in the United Kingdom, that is to say, a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether the admission to the meeting is general or restricted."

The other paragraphs in Part II extended the same privilege to the findings and decisions of certain learned, professional, commercial and sporting bodies; to reports of proceedings at certain specified meetings and sittings provided they were not meetings or sittings "admission to which is denied to representatives of newspapers and other members of the public"; to reports of proceedings at general meetings of certain public corporations; and to reports or summaries of official notices issued for the information of the public. In both parts of the Schedule privilege was conditional upon the report being fair and accurate.

The Judge's Ruling

    Relying on earlier Northern Ireland authority, Girvan J. held that "a press conference specially called by a number of individuals to give publicity to their views and plans is not a public meeting." The nub of his reasoning is found in the following paragraph.

    "What makes a meeting a public meeting as opposed to a private or non-public meeting is the absence of any particular nexus between those organising the meeting and those taking part. Where a person or group organises a meeting at which persons are invited not as members of the public but because some other relationship between the invitor or the invitee the meeting does not arise from the fact that the invitees are members of the public. The invitees are not a section of the public vis a vis the invitor. As individuals, the invitees may be members of the public in the sense that everybody is a member of the public but this is not the reason for their attending the meeting. The individuals were invited because of a particular relationship with the invitor or with the person who organises the meeting. The fact that as individuals they may be members of the public does not convert the meeting into a public meeting. The relationship between the committee and the invited press members which arises from the invitation by the committee would be between the committee and the journalists in that capacity and not as members of the public."

The judge was accordingly satisfied that the evidence did not establish that Mr. Wilkinson had attended and reported on a public meeting falling within paragraph 9. He also held that Mr. Wilkinson's article was not in any event a report of the meeting, since it included material which had been contained in the press release and obtained from Mr. McKay personally but which had not been aired in the general part of the proceedings. This conclusion he expressed in this way:

    "If I were wrong on that [public meeting] point I would further hold that Mr. Wilkinson's direct citation from the press release in paragraph 11 could not in law constitute a report of the proceedings of a public meeting. What was stated at the meeting was not identical to what appeared in the press release in that paragraph and what was said at the meeting qualified in a material way what was in the press release. On Mr. Wilkinson's evidence he approached Mr. McKay after the main business of the meeting was over and his evidence was that McKay confirmed what was stated in the press release and for that reason Mr. Wilkinson then proceeded to incorporate that into his report.

        "Mr. Wilkinson's description of what happened after the end of the main business of the meeting varies somewhat. Initially he stated that the meeting ended and that he had a conversation with Mr. McKay. He then said that the meeting was drawing to a close and conversations were developing and it became apparent that they wanted to deal with questions. When section 7 and paragraph 9 protect the reporting of a public meeting, in my view they refer to the reporting of points emerging in the truly public part of the proceedings of the meeting. Clearly a line must be drawn between what happened at the public meeting and what happened after it. On the evidence I consider this aspect of the article referred to a matter which occurred after the public meeting, if, contrary to my primary conclusions there was a public meeting. I leave open the question whether a meeting called by an organisation principally for the purpose of inviting a specific class not qua members of the public, such as journalists, becomes a public meeting because members of the public incidentally may attend it. My ruling is that this was not a report of the proceedings of a public meeting and the jury will be directed accordingly."

The judge accordingly instructed the jury as a matter of law that the meeting Mr. Wilkinson had reported on was not a public meeting and therefore that the occasion was not a privileged one. The solicitors were accordingly entitled to succeed on liability and the only issue for the jury was damages.

The Court of Appeal Judgment

    The Court of Appeal's judgment contains a number of findings helpful to the newspaper. It concluded that a press conference could constitute a meeting for purposes of paragraph 9: a meeting was no more than an assembly of persons who had gathered together (although I would, for my part, understand the expression to connote some degree of organisation or pre-arrangement to bring the meeting about). It held that the part of the article which retailed what had been said at the press conference qualified as a report for purposes of the paragraph; it did not matter that the article also contained material not relating to the press conference. The court noted the absence of any suggestion that the meeting had not been bona fide or not lawfully held for a lawful purpose. It held it to be "indisputable" that the question of Mr. Clegg's conviction constituted a matter of public concern. The court was of opinion that questions of fairness and accuracy would have been questions for the jury, had the newspaper otherwise been entitled to privilege. The court expressed some doubt about the construction of the expression "furtherance or discussion of any matter of public concern" but said:

    "The best way to make sense of the wording is to say that a meeting is in 'furtherance' of a matter of public concern if it is held for the purpose of promoting the acceptance of a certain view or advancing the interests of a particular person in relation to such a matter. It is not in my view an essential element of the concept of a public meeting that it may be devoted to weighing up the pros and cons of some proposition, though many public meetings are of this nature."

The court accordingly concluded that the fact that the press conference was avowedly called to assist the cause of the campaign in favour of Mr. Clegg's release did not of itself take it outside the definition in paragraph 9 of a public meeting. But on the central question giving rise to this appeal the court agreed with the trial judge. It held (at p. 373):

    "I agree, however, with the view expressed by Girvan J. that in addition to satisfying the requirements of the definition in paragraph 9 it is necessary for the appellant newspaper to establish that there was a public element in the meeting. It is in my opinion necessary to incorporate the public element inherent in the concept of a public meeting in a manner which affords a satisfactory means of distinguishing it from a small private gathering. I think that the judge was right in his approach, in which he focused on the intention of those who arranged the meeting. He came to the conclusion in the passage which I quoted earlier from his ruling that what distinguishes a private gathering from a public meeting is the presence of a nexus between those organising the meeting and those taking part. If the participants are invited because of a particular relationship with the organiser of the meeting, then they are not attending as members of the public but as invitees and they do not for present purposes constitute the public. The consequence of this reasoning is that members of a particular church would not constitute the public, nor would members of a society, even a large one like the Pakistani Students' Federation. It follows in my opinion that where the organiser of a press conference issues an invitation to attend to members of the press that is not the same as announcing the holding of a meeting open to members of the public. A public meeting must be open to the public, in the sense that a general invitation to attend is extended to the public at large, either generally or with some restriction. In the ordinary way the object of a press conference is to obtain publicity for something which the organisers wish to bring to public attention. For this reason the invitation is issued to members of the press, for they are the people who can give their cause the publicity which they desire. It may well be that if members of the public arrived at the door, they would not turn them away or prevent them from asking questions, for they would no doubt wish to avoid antagonising any potential supporters, whose participation may not hamper the conduct of the press conference. Be that as it may, if the invitation is issued to a restricted body of persons, representatives of the press, the incidental presence of some members of the public may not be sufficient to transform the gathering into a public meeting."

The court rejected a submission by the newspaper that the term "restricted" at the end of paragraph 9 was intended to refer to a section of the public as distinct from the public as a whole. The court expressed the opinion (at p. 373) that:

    "The type of restriction envisaged is a charge for admission, whereby admission is still available to the public at large but its members cannot obtain entry to the meeting unless they pay the charge, not a selection of a specific section of the public. This being so, the question whether members of the press constitute a sufficient section of the public is not material . . ."

The court inclined to the view (at p. 376) that the portion of the article which retailed a passage of the press release not repeated during the press conference itself was not a report of the proceedings; nor was anything said to Mr. Wilkinson by Mr. McKay in their conversation part of the report, since the court considered that the press conference had ended before that time.

The First Issue

    The first and major question for decision is one of statutory construction: whether the press conference on 23 January 1995 was a public meeting within the meaning of section 7 of and paragraph 9 of the Schedule to the 1955 Act.

    Lord Lester of Herne Hill Q.C. for the newspaper criticised the construction of paragraph 9 adopted by the judge and the Court of Appeal as narrow, technical and liable to infringe the freedom of expression which should be enjoyed by the press. He urged that a broad, realistic and contemporary construction should be given to paragraph 9, relying on the development of our common and statute law, the European Convention, the Human Rights Act 1998 and the recognition by courts, here and abroad, of the crucial role of the press in contributing to the proper functioning of a modern democratic society. While the right of freedom of expression could never be absolute, and the need to protect personal reputations against unjustified attack called for a measure of legal protection, such protection was given by section 7 and paragraph 9 on the construction contended for. A meeting was to be regarded as public if those who arranged it showed an intention that it should be so, whether by inviting members of the public or some of them to attend or by inviting the press with a view to securing wider publicity for the proceedings. On the facts here it was plain that the meeting was intended to be public. The closing words of paragraph 9 ("whether the admission . . . is general or restricted") were to be read as words of extension, not limitation: if a meeting was otherwise public it mattered not whether the public at large or only some of the public were invited or free to attend. The judge and the Court of Appeal had put too narrow a construction on those words also.

    Mr. Lavery Q.C. for the solicitors supported the construction adopted by the judge and the Court of Appeal. The European Convention and the Human Rights Act had no bearing on the construction of section 7 and paragraph 9, which were not curtailing but extending the right to free expression. The issue concerned the scope of that legislative extension. A public meeting was a meeting of members of the public attending as such in response to an invitation by the organisers of the meeting. A press conference was something different. Both the Faulks Committee in 1975 in its Report on Defamation (Cmnd. 5909) and the Irish Law Reform Commission in its Report on The Civil Law of Defamation in 1991 had recommended the extension of statutory qualified privilege to cover some press conferences. Neither recommendation had been given legislative effect. It was not for the courts to grant a privilege which Paliament had declined to grant, despite an opportunity to do so in the Defamation Act 1996.

    I am of the clear opinion that the press conference held on 23 January was a public meeting within the meaning of section 7 and paragraph 9. I reach that conclusion for these reasons.

1. In a modern, developed society it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of that society. The majority can participate only indirectly, by exercising their rights as citizens to vote, express their opinions, make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to and informed about matters which call or may call for consideration and action. It is very largely through the media, including of course the press, that they will be so alerted and informed. The proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring. For this reason the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction.

2. Sometimes the press takes the initiative in exploring factual situations and reporting the outcome of such investigations. In doing so it may, if certain conditions are met, enjoy qualified privilege at common law, as recently explained by this House in Reynolds v. Times Newspapers Limited [1999] 3 W.L.R. 1010. In the present case the role of the press is different. It is that of reporter. The press then acts, in a very literal sense, as a medium of communication. Since 1881 a series of statutory provisions cited above has granted newspapers qualified privilege in relation to certain reports in certain closely defined circumstances. By section 7(1) of the 1955 Act the protection is granted only to a report published in a newspaper as defined. The privilege is not granted to the author of the statement complained of, who is liable if the statement is defamatory unless he has some other defence. The privilege is lost if malice is proved. By section 7(2) the enjoyment of qualified privilege is conditional on the grant of a right of reply to the complainant, if the case falls within Part II of the Schedule. By section 7(3) there is no privilege if the publication is of a matter the publication of which is prohibited by law, or if the matter published is not of public concern or if its publication is not for the public benefit. By section 7(4) any privilege enjoyed at common law is preserved. The reports of proceedings privileged under Part I of the Schedule have to be fair and accurate and have (subject to one very limited exception) to be of proceedings in public. The reports privileged under Part II of the Schedule have also to be fair and accurate: further safeguards are provided by close definition (save in paragraph 9) of the bodies whose findings, decisions or proceedings are the subject of report. In paragraph 9, the privilege covers only fair and accurate reports of proceedings at a public meeting held in the United Kingdom, and then only if the meeting is bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern. The grant of privilege inevitably deprives a complainant of a remedy he would otherwise enjoy if a defamatory statement is made concerning him, but section 7 and paragraph 9 give a very considerable measure of protection to those liable to be injured.

3. The effect of the legislation in 1955 was to grant qualified privilege to newspaper reports of public meetings, subject to the stringent conditions just noted. This grant (as in 1881, 1888 and 1952) must have been intended to enable citizens to participate in the public life of their society, even if only indirectly, in an informed and intelligent way. Since very few people could personally witness any proceedings or attend any meeting in question, it was intended to put others, by reading newspaper reports, in a comparable position. The privilege was not extended to newspaper reports of the proceedings of private bodies and private meetings, because those are proceedings which by definition the public do not witness and to which the public do not have access: the object was not to put the newspaper reader in a better position than one who was able to attend the proceedings or meeting in person.

4. Although the 1955 reference to "public meeting" derives from 1888, it must be interpreted in a manner which gives effect to the intention of the legislature in the social and other conditions which obtain today. The statutory language does not, despite the words "that is to say", define what is meant by "public", but limits the categories of public meeting whose proceedings may be entitled to privilege. I see no warrant in the statutory language for the nexus test adopted by the judge and the Court of Appeal. Thus "public", a familiar term, must be given its ordinary meaning. A meeting is public if those who organise it or arrange it open it to the public or, by issuing a general invitation to the press, manifest an intention or desire that the proceedings of the meeting should be communicated to a wider public. Press representatives may be regarded either as members of the public (as made clear by the language of paragraph 10 of the Schedule) or as the eyes and ears of the public to whom they report. A meeting is private if it is not open to members of the public and if it is not intended that the proceedings of a meeting should be communicated to the public, unless perhaps by the body which holds the meeting. The closing words of paragraph 9 are intended to make clear that a meeting is not to be regarded as other than public because admission is not open to all members of the public but is subject to some restriction. A press conference, attended by members of the press and perhaps other members of the public, has become an important vehicle for promoting the discussion and furtherance of matters of public concern, and there is nothing in the nature of such a conference which takes it outside the ordinary meaning of "public meeting."